Diamond Motors, Inc

National Labor Relations Board - Board Decisions

Aug 12, 1974

212 N.L.R.B. 820 (N.L.R.B. 1974)

820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Diamond Motors, Inc, and Local 1A, United Automo-
tive Sales and Service Employees Union , NOITU.
Cases 29-CA-3550 and 29-CA-3592
August 12, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY,
AND PENELLO
On April 23, 1974, Adminstrative Law Judge John
F. Corbley issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel and the Re-
spondent filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as herein modified.'
We agree with the Administrative Law Judge that
Respondent violated Section 8(a)(3) of the Act and
engaged in numerous violations of Section 8(a)(1).
The General Counsel has excepted to the refusal of
the Administrative Law Judge to find an additional
violation of Section 8(a)(1) based on the Respondent's
refusal to grant a Christmas wage increase. We find
merit in this exception.
The record reveals that for a period of 5 years, the
Respondent has had a policy of granting a $10 wage
increase at Christmas. Early in September 1973, after
the Union's bargaining demand,,and after the com-
mission of numerous unfair labor practices Respon-
dent announced that the employees would receive a
$10 raise at the end of the year. The Administrative
Law Judge correctly found that the timing of the an-
nouncement was violative of the Act.
Charges were filed against the Respondent and
Board officials began their investigation. Respondent
i The Administrative Law Judge found that Steve Battaglia is not a mana-
gerial employee and therefore is included in the collective -bargaining unit
found appropriate herein and entitled to the protection afforded by Section
8(a)(1) of the Act. We agree . The Administrative Law Judge went on to state,
however, that even if Battaglia were found to be a managerial employee and
was excluded from the unit, he nevertheless would find that Battaglia is
entitled to the protection of Section 8(a)(l). In reaching this conclusion, he
relied on North Arkansas Electric Cooperative, Inc, 185 NLRB 550 (1970). On
the same day of his decision, however, the Supreme Court of the United
States issued its decision in N.L R B v Bell Aerospace Company, Division of
Textron, Inc , 416 U.S . 267 (1974), in which it held that managerial employees
are excluded from the protection of the Act Accordingly , in view of the
Supreme Court 's decision, we do not adopt the Administrative Law Judge's
statement that Battaglia would be protected by the Act even if found to be
a managerial employee.
stated that a Board agent who was investigating the
charges informed Respondent that (among the
charges) there was an allegation that Respondent had
promised the employees a raise if they withdrew from
the Union. Boyer, Respondent's vice president and
operating manager, stated he told other company offi-
cials that if he proceeded with the raises in these cir-
cumstances he could fall into the trap of appearing to
give the employees a wage increase to stop them from
joining a union. Shortly before Christmas, Boyer told
the employees that he would not give them the raise
previously announced and stated the aforementioned
reasons for his action.
In the circumstances of this case, we do not agree
with the Administrative Law Judge's conclusion that
Boyer's explanation to the employees that the increase
was being withheld to avoid the charge, of an unfair
labor practice cures the vice of the withholding.
Respondent's normal business practice was to grant
wage increases annually at Christmas, and a decision
had been made and announced that an increase
would be granted for the year in question. By inform-
ing the employees that the increase would be withheld
because of the possibility of an unfair labor practice
charge Boyer was telling the employees, in effect, that
but for their support of the Union there would be no
fear of an unfair labor practice and hence, they would
be receiving their wage increases. Additionally, in ex-
plaining to the employees the reasons for which they
were not receiving raises Respondent misrepresented
applicable law. It is well established that during an
organizational campaign an employer must decide
whether or not to grant improvements in wages and
benefits in the same manner as it would absent the
presence of a union. Accordingly, we conclude that
the circumstances under which Respondent withheld
the wage increases violated Section 8(a)(1).
Finally we agree with the Administrative Law
Judge's finding that the numerous violations of the
Act in which the Respondent has engaged have ren-
dered a fair election impossible and that the valid
cards executed by the unit employees represent a
more reliable measure of employee desires on the is-
sue of representation than would an election, and that
the policies of the Act will best be effectuated by our
entering an order requiring Respondent, upon re-
quest, to bargain with the Union. However, consistent
with our opinion in Steel Fab, Inc.,2 we predicate this
bargaining order solely on the 8(a)(3) violation and
the numerous 8(a)(1) violations in this case. We dis-
miss that part of the complaint which alleges an
8(a)(5) violation based on Respondent's commission
of the various unfair labor practices found in this case.
'212 NLRB No 25
212 NLRB No. 119
DIAMOND MOTORS , INC. 821
As the majority of the Board noted in Steel Fab, Inc.,'
it is not essential to make 8(a)(5) findings in order to
issue a bargaining order and we prefer to ground our
issuance of the bargaining order on the numerous
8(a)(1) violations and the 8(a)(3) violation.
respecting rates of pay, wages, hours, or other terms
and conditions of employment and, if an under-
standing is reached, embody such understanding in a
signed agreement."
4. Substitute the attached notice for that of the
Administrative Law Judge.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent Diamond Motors, Inc., New
York City, New York, its officers, agents, successors,
and assigns shall take the action set forth in the said
recommended Order, as modified.
1. Delete paragraph 1(c) and substitute the follow-
ing for paragraph 1(b):
"(b) Coercively interrogating its employees con-
cerning their own or their fellow employees' union
membership or activities; threatening to close or sell
its business rather than deal with a union; threatening
to take away employees' company-provided transpor-
tation or insurance because of a union; threatening to
take away employees' commissions if they join a
union; threatening to do away with employees' jobs
if they belong to a union; promising employees in-
creased wages or insurance benefits to discourage
them from joining or remaining in a union; withhold-
ing wage increases customarily granted employees; or
in any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guar-
anteed in Section 7 of the Act."
2. Substitute the following for paragraph 2(a):
"(a) Offer Curtis Clark immediate and full rein-
statement to his former or substantially equivalent
position, without prejudice to his seniority or other
rights and privileges and make him whole for any loss
of pay he may have suffered as the result of his dis-
criminatory discharge in the manner set forth in
"The Remedy" section of the Administrative Law
Judge's Decision and in a like manner make whole
the other employees for any monetary losses they
may have suffered by reason of Respondent's with-
holding of the announced wage increase."
3. Substitute the following for paragraph 2(c):
"(c) Upon request, recognize and bargain with Lo-
cal IA, United Automobile Sales and Service Em-
ployees union, NOITU, as the exclusive
collective-bargaining representative of the employees
in a unit of all maintenance mechanics , porters, pol-
ishers, and parts department employees employed at
Respondent's place of business at 130-07 Merrick
Boulevard, Queens, New York City, New York, ex-
cluding guards and supervisors as defined in the Act,
' For the reasons set forth in his concurring and dissenting opinion in Steel
Fab, Inc, 212 NLRB No. 25, Member Jenkins would find a violation of
Section 8(a)(5), as did the Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the chance to give
evidence it has been decided that we, Diamond Mo-
tors, Inc., have violated the National Labor Relations
Act and we have been ordered to post this notice.
The National Labor Relations Act give you, as em-
ployees, certain rights, including the right to self-orga-
nization, to form, join, or help unions and to bargain
through a respresentative of your own choosing. Ac-
cordingly, we give you these assurances:
WE WILL NOT interrogate you concerning your
union membership, activities, or sympathies or
those of your fellow employees.
WE WILL NOT threaten to do away with your
jobs; to take away any of your existing benefits
including company-provided transportation and
insurance or your commissions; or to close
down our business, because you joined or sup-
ported the Union.
WE WILL NOT promise you improved wages or
insurance benefits to discourage you from sup-
porting the Union.
WE WILL NOT withhold wage increases to dis-
courage you from supporting the Union.
WE WILL NOT discharge you, or take any other
reprisal against you because you join, support, or
engage in organizational activities in behalf of
Local 1A, United Automotive Sales and Service
Employees Union, NOITU, or any other union.
WE WILL NOT do anything which interferes with
your rights above as guaranteed by the National
Labor Relations Act.
WE WILL offer to reinstate Curtis Clark to his
former position or, if such position no longer
exists, to a substantially equivalent position, with
full seniority and all other rights and privileges,
as the Board has found that he was discharged
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because he joined and supported the above-
named Union.
WE WILL also make up all pay Curtis Clark lost
because of his discharge with 6-percent interest.
WE WILL, upon request, recognize and bargain
with Local IA, United Automotive Sales and
Service Employees Union, NOITU, as the collec-
tive-bargaining agent of our employees in the ap-
propriate unit at our place of business at 130-07
Merrick Boulevard, Queens, New York City,
New York. That unit consists of:
All maintenance mechanics, porters, polishers,
and parts department employees excluding all
guards and supervisors as defined in the Act.
WE WILL also make whole the other employees for
any monetary losses they may have suffered by
reason of our withholding of an announced wage
increase.
DIAMOND MOTORS, INC
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
,by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material,
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 16 Court Street Fourth Floor, Brook-
lyn, New York 11241, Telephone 212-596-3535.
DECISION
STATEMENT OF THE CASE
JOHN F. CORBLEY, Administrative Law Judge: A hearing
was held in this case on February 7 and 8, 1974, at Brooklyn;
New York, pursuant to a charge filed in Case 29-CA-3550
on September 12, 1973, by Local lA, United Automotive
Sales and Service Employees Union, NOITU (hereinafter
sometimes referred to as the Charging Party or the Union)
and served on Respondent by registered mail on or about
the same date; pursuant to a charge in Case 29-CA-3529
filed by the Union on October 12, 1973, and served by
registered mail on Respondent on or about the latter date,
and upon an order consolidating cases, complaint, and no-
tice of hearing issued by the Regional Director for Region
29 of the National Labor Relations Board on December 27,
1973, and served on Respondent by registered mail on the
same date.
The complaint, which was amended at the hearing, alleg-
es that Respondent has committed a number of violations
of Section 8(a)(1), (3) and (5) of the Act. More specifically,
the complaint alleges that Respondent has unlawfully re-
fused to bargain with the Union since September 10, 1973;
that Respondent during the period September 10, 11, 12,
1973, variously, coercively interrogated its employees,
threatened one with discharge, and threatened them that it
would close down its shop, discontinue various employee
privileges, and visit other reprisals upon them for supporting
the Union; that Respondent on or about September 10 or
12, 1973, promised its employees wage increases, insurance,
and other benefits or improvements in working conditions
or other terms of employement to induce them to withdraw
their membership in, or other support from, the Union; that
Respondent on or about September 10 or 12, 1973, bar-
gained directly with individual employees; that Respondent
discharged Curtis Clark and has refused to reinstate him
because of his union activities and that Respondent, about
November or December 1973, refused to grant its employ-
ees a regular wage increase. In its answer, which was duly
filed and further amended at the hearing, Respondent de-
nied the commission of any unfair labor practices.
For reasons which appear, hereinafter, I find and con-
clude that Respondent has violated Section 8(a)(1), (3), and
(5) of the Act essentially as alleged in the complaint with the
exception of the allegation that Respondent unlawfully de-
prived employees of a regular wage increase in December
1973.
At the hearing, the General Counsel and Respondent
were represented by counsel at all times and the Charging
Party was represented by counsel for part of the first day
until counsel was excused. All parties were given full oppor-
tunity to examine and cross-examine witnesses, to introduce
evidence, and to file briefs. The General Counsel made a
short closing statement at the conclusion of the hearing and
Respondent waived this right. The Charging Party waived
further participation in the hearing prior to its conclusion.
Excellent briefs have been filed by the Respondent and the
General Counsel and have been considered.
Upon the entire record I in this case, including the briefs,
and from my observation of the witnesses, I make the fol-
lowing:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material herein,
a corporation duly organized under, and existing by virtue
of, the laws of the State of New York.
At all times material herein, Respondent has maintained
its principal office and place of business at 130-07 Merrick
Boulevard, in the County of Queens, city and State of New
York, where it is, and has been at all times material herein,
engaged in the retail sale and servicing of new and used
1 On April 1 , 1974, after the close of the hearing, I issued to the parties an
order to show cause, in writing on or before April 11, 1974, why the transcript
of the proceeding should not be amended in certain particulars The parties
did not respond to this order to show cause It is therefore ordered that the
transcript of this proceeding be, and it hereby is, corrected in those particu-
lars.
DIAMOND MOTORS, INC. 823
automobiles and related products.
During the past year, which period is representative of its
annual operations generally, Respondent, in the course and
conduct of its operations, derived gross revenues therefrom
in excess of $500,000.
Also during the past year, which period is representative
of its annual operations generally, Respondent, in the
course and conduct of its business, purchased and caused
to be transported and delivered to its place of business,
automobiles, automobile parts, and other goods and materi-
als valued in excess of $50,000 of which goods and materials
valued in excess of $50,000 were transported and delivered
to its place of business in interstate commerce directly from
states of the United States other than the State of New
York.
The complaint alleges, the answer as amended admits,
and I find that Respondent is, and has been at all times
material herein, an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
Local IA, United Automotive Sales and Service Employees
Union, NOITU, is a labor organization within the meaning
of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Respondent's Hierarchy
The parties stipulated and I find that Paul Schafer and
Martin Boyer are, respectively, the president and vice presi-
dent of Respondent, and is its agents and supervisors within
the meaning of the Act.
Mrs. Diamond is Respondent's secretary-treasurer.
B. Background and Sequence of Events
As previously mentioned, the Respondent is engaged in
the retail sale and servicing of new and used automobiles
and related products. At its principal place of business, at
130-07 Merrick Boulevard, Queens, New York, Respon-
dent has a showroom, a service area where automobiles are
repaired and serviced, and a parts department.
Sometime in June or July 1973, the Union's organizing
drive began when its organizer, Sam Kerr, entered the
Respondent's premises to purchase some wheels or tires for
the Union's car. On this occasion Kerr spoke to Steve Bat-
taglia, Respondent's parts manager, in the parts department
and learned from Battaglia that Respondent was not a
union shop. Kerr inquired what sort of benefits
Respondent's employees received and then proceeded to
explain the benefits of joining the Union.
At the end of August or the beginning of September 1973,
Kerr returned to the vicinity of Respondent's premises and
spoke to Kearns, a mechanic, and Clark, a porter (the al-
leged discriminatee), as these individuals were walking to-
ward Respondent's place of business just before its opening
in the morning.
Kerr addressed Kearns and Clark at the same time. Kerr
told these employees that he was from the Union and that
he was there to organize them. He further told them that the
cards were for membership in the Union, that their comple-
tion of the cards would give the Union the right to represent
them, and that the Union would obtain better benefits for
them. Finally he mentioned to them that the cards might
also be used to obtain a Board-conducted election. Kearns
and Clark signed their cards and gave them to Kerr.2
Kerr put these cards in his pocket and later placed them
in a file in the Union's office. Both cards were undated but,
as I have found, were executed near the end of August or
the beginning of September 1973. Each card was entitled
"Application For Membership" and contained blank spaces
for the signer's name, address, occupation, wage, employer,
employer's address, the date, and the signer's sex. Thereaf-
ter each card bore the legend:
I hereby authorize United Automotive Sales and Ser-
vice Employees Union, Local No. IA, N.O.I.T.U., to
represent me and, in my behalf, to negotiate and con-
clude all agreements as to hours of labor, wages and
other employment conditions. All information will be
held strictly confidential.
The card concluded with a space for the applicant's signa-
ture.
On the aforementioned occasion when Kerr obtained
signed cards from Kearns and Clark, Kerr also gave a card
to Battaglia who was passing by while Kerr was speaking to
Kearns and Clark. Battaglia did not sign his card at that
time but took it with him.3
On or about September 4, 1973, Kerr also approached
Yaskulski, a mechanic, in the morning, as Yaskulski was
approaching Respondent's place of business and offered
Yaskulski a card to sign.4 Yaskulski declined to sign a card
at this time stating he would think it over. He did, however,
take the blank card with him.
That evening Yaskulski showed the card to Boyer,
2 These findings are based on the credible testimony of Kerr in this regard
which was essentially corroborated by Kearns, who appeared pursuant to
subpoena and, in part, also corroborated by Clark Kearns stated that Kerr
told Clark and him that he, Kerr, could tepresent them if they signed the
cards and that they would also receive certain enumerated benefits from
joining the Union Kearns stated he signed the card without reading it except
to notice that it was an application for membership. Clark testified that he
likewise did not read the card and indeed has difficulty reading at all But
he stated that Kerr told Kearns and him about the Union' s benefits and also
that, by signing a card, he would have an election
I see no inconsistency in Kerr's prior affidavit to the Board While martful-
ly worded-as was much of Kerr's testimony-the affidavit clearly states
that while he told the employees that their cards would go to the Labor Board
which would hold an election, he also told them that when he signed the other
employees up he would ask the "boss" for recognition While Kerr had some
difficulty expressing himself with precision on the stand , his manner was
sincere
Kearns impressed me as a sincere witness who testified in a straightforward
manner I was not as favorably impressed with Clark whose credibility I will
discuss more fully hereinafter
3 Kerr testified that he also explained the purpose of the card in Battaglia's
presence on this occasion, which Battaglia did not corroborate I find it
unnecessary to make any finding as to what, if anything, Kerr told Battaglia
about the card at this time in the light of Battaglia's testimony, to be dis-
cussed infra, as to his understanding of the card
4 Yaskulski had been on vacation when Kerr had previously spoken to
Kearns and Clark
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's vice president, and asked Doyer what Yaskul-
ski should do. Boyer told Yaskulski to do what Yaskulski
thought best. Yaskulski also spoke to Battaglia that evening
and asked the latter's opinion. Battaglia stated he thought
that they should join the Union because they had no bene-
fits, as matters stood.
On September 6, Yaskulski met Kerr several blocks away
from Respondent 's business and gave Kerr a completed and
signed membership card. Yaskulski had read his card before
he signed it. When Yaskulski tendered his card to Kerr,
Kerr told Yaskulski that the card gave Kerr the right to
represent Yaskulski.
Also on or about September 6, 1973, Battaglia gave his
completed and signed card to Lasky, a union official, at the
Union's headquarters. Battaglia read his card before he
signed it. Battaglia credibly testified, and I find, that either
at the time he was given the card by Kerr or presented it to
Lasky, he, Battaglia, was informed that the purpose of the
card was to permit the Union to act as bargaining agent with
the Respondent.
The format of the cards executed by Yaskulski and Bat-
taglia was the same as those previously completed by
Kearns and Clark except that Battaglia's card is dated Sep-
tember 4, 1973, and Yaskulski's is dated September 6, 1973.
When Yaskulski handed in his card he was told by the
union representatives that the Union would probably go to
a Board election. Battaglia was also told by Lasky that his
card would be forwarded to the Board.
With Yaskulski's and Battaglia's card the Union had
signed up 100 percent of the employees in the unit.
On or about September 7, 1973, the Union mailed an
election petition to the National Labor Relations Board's
Region 29 office in Brooklyn, New York. This petition was
accompanied by all four of the aforementioned union au-
thorization cards of Clark, Kearns, Battaglia, and Yaskul-
ski. It was received in the Regional Office on September 10,
1973. The petition recited that a request 'for recognition
"was [sic] made on September 10, 1973" and that the "Em-
ployer declined recognition on or about no reply [sic]."
While it is apparent that this petition was prepared and
mailed before any request was made for the Respondent to
recognize the Union, the foregoing entry was to an extent
prophetic as events would prove.
Between 8:30 a.m. and 9 a.m. on the morning of Septem-
ber 10, 1973, Daniel Lasky, who is president of the Charging
Party's national Union and also secretary-treasurer of the
Charging Party, and Gerald Hustick, the secretary-treasurer
of the national Union, went to Respondent's showroom at
130-07 Merrick Boulevard, Queens, New York. Lasky and
Hustick entered the showroom at that time where they met
Boyer. Lasky asked Boyer who was the employer or boss to
which Boyer responded that it was he. There is a sharp
conflict in the testimony of Lasky, Hustick, and Battaglia,
on the one hand, and Boyer and Schafer, on the other, as
to what was said thereafter. Based on my resolution of
credibility I find that the following occurred.
After Boyer said he was the boss or employer Lasky told
him that he, Lasky, and Hustick were from the Union, that
they represented Respondent's employees, and desired rec-
ognition. At this point Schafer who was sitting at a desk
some 25 feet away, got up, went over to where Lasky, Hus-
tick, and Boyer were standing, told Lasky and Hustick they
had no business there, and asked them to leave. They
promptly did so 5
Boyer then asked Battaglia who those people were.
Battaglia's recollection on cross-examination was that he
may have told Doyer that one of the individuals was Lasky .6
There is a further dispute as to the sequence of events
immediately after Lasky and Hustick left the showroom to
stand on the sidewalk outside. Here again based on my
resolution of credibility I find these subsequent events oc-
curred as follows.
After Lasky and Hustick left the showroom the two
walked towards the driveway where Hustick attempted to
speak to Yaskulski who was moving cars there. Schafer saw
this and went outside and asked Hustick and Lasky to get
off the premises. Lasky and Hustick insisted on their right
to stand on the sidewalk which they did. Then Lasky and
Schafer got into an argument and Lasky, in response to
Schafer's efforts to have Lasky leave the area, told Schafer
that he, Lasky, would squash Schafer like a bug. About this
point Boyer came out, spoke to Schafer, calmed him down
5 These findings are based on the testimony of Lasky to the extent essen-
tially corroborated by Hustick and also Battaglia, who was standing nearby
when the incident took place I do not credit Lasky's statement that he
offered his card to Boyer, or his later change in testimony, that he rather
offered Hustick's card Neither Hustick nor Battaglia corroborated this
Lasky I found to be a somewhat argumentative witness particularly in
testifying as to this and later events at the Employer's place of business Also
he testified on at least two occasions as to what he thought must have
happened-hence not necessarily from recollection There were discrepan-
cies between his preheating affidavit and his testimony in regard to still other
matters Therefore I do not believe that his recollection of this or certain
other details of the events was as clear as that of other witnesses , but as noted,
I have credited him where he was corroborated by Hustick and Battaglia
Hustick struck me as being a generally sincere and reliable witness who
testified in a straightforward manner except with regard to events which
followed after he and Lasky left the showroom As to these, his recollection
was somewhat vague
While Battaglia was a quick speaker, when testifying, and was confused
in respect to at least one date and a detail of another matter , he testified
pursuant to subpoena and I found his manner to be forthright and sincere
While Battaglia did not remember Hustick being inside the showroom, I do
not deem this significant since Lasky did most or all of the talking there
Battaglia did, however, remember Hustick being in the vicinity with Lasky.
Boyer did not impress me very favorably There are a number of discrepan-
cies in his two preheating affidavits in respect to the tardiness and absentee-
ism of the alleged discriminatee , Clark, and in respect to Boyer's
interrogation of Battaglia and Yaskulski These errors are of such a glaring
nature that Boyer attempted at the hearing to divorce himself from these
affidavits His self-serving or volunteered description of his personality and
of his claimed emotional hurt during the events in question here , I found
unconvincing and I will comment on the latter claim hereinafter Boyer also
became defensive on cross-examination In these circumstances , I have not
credited him except in those instances where I state otherwise
Schafer's testimony likewise did not impress me favorably I will also
comment further on his credibility at greater length, infra Suffice it to say
at this point that I have not credited him either unless I state otherwise
I specifically do not credit the testimony of Schafer and Boyer that Schafer
got up and told Lasky and Hustick to leave the showroom because Lasky
purportedly told Boyer that he, Lasky, was there to show Respondent how
to run its business Lasky and Hustick denied this and Battaglia testified that
Schafer told the union officials to leave when Lasky stated he was there to
seek recognition
6 That Boyer should ask for, and probably obtain, a specific identification
of Lasky I do not find implausible because, as I have found, Lasky had only
told Boyer that he and Hustick were from the Union
I do not credit Boyer's testimony that Battaglia responded on this occasion
by merely saying that Lasky and Hustick were from the Union
I
DIAMOND MOTORS , INC. 825
and he and Schafer returned to the shop 7 Lasky and Hus-
tick remained out on the sidewalk for another 20 minutes'
or so and then left .8
r I do not credit Lasky's and Hustick's testimony that this sequence of
events occurred after they heard Schafer and Boyer asking Battaglia and
Yaskulski if they had joined the Union-an incident which I find occurred
just after this sequence of events and which will be discussed infra That the
sidewalk argument occurred before his interrogation is confirmed by the
credible testimony of Battaglia and is consistent with the recollection of
Schafer.
Schafer and Boyer stated that Lasky told Schafer in this incident not only
that Lasky would squash Schafer like a bug but that Lasky would also level
the building. Neither Lasky nor Hustick corroborated that Lasky made the
latter remark to Schafer (nor do Boyer's two preheating affidavits) Lasky
stated in answer to the question that if Schafer was going to use his belt, he,
Lasky could "just use [sic ] force with force " Hustick recalled no threat by
Lasky but stated that there were "words exhanged" between Schafer and
Lasky . Schafer did tell Battaglia shortly after the incident that Lasky had said
he would squash Schafer like a bug Neither Schafer nor Yaskulski-a most
impressive witness-testified that either Boyer or Schafer told them anything
about a Lasky threat to level the building-which if true , would have been
the most serious of any remarks by Lasky on this occasion and would have
borne repeating, it seems to me, with equal or greater probability than the
bug squashing remark related by Schafer to Battaglia ^,
I do not credit Boyer's claim that he told Yaskulski and Battaglia of the
alleged building leveling threat in the absence of corroboration by them.
Boyer's preheating affidavit states rather that he told them a story about
damage done to another employer's place of business.
I also do not credit Boyer's testimony that he was "emotionally upset" or
"choked up" based on the sidewalk encounter with Lasky outside
Respondent 's showroom . Boyer did not call the police nor request that ar-
rests be made While the police came by later in the day, as they apparently
do with some regularity , Boyer claimed he only told the police of an alleged
threat by Lasky (in the sidewalk incident) when asked by the police why he,
Boyer , was "upset" and "drawn." Also in one of his prehearing affidavits
Boyer related his claimed emotional upset-not to the sidewalk incident-
but rather to the showroom incident previously discussed
I, accordingly, conclude that Lasky did say he would squash Schafer like
a bug but I discredit the testimony of Schafer and Boyer that Lasky also said
he would level their building.
I have already commented at length on the credibility of Boyer. As to
Schafer, his manner in testifying did not convince me of his sincereity. He
noticeably blinked his eyes when denying that he threatened to take away
certain benefits of Yaskulski and Battaglia , to be discussed , infra, and he
became argumentative in explaining his ejection of Lasky and Hustick from
the showroom . Further his testimony on one important point was, in my
judgment, so patently at odds with the probabilities and the logic of events
as to cast an unfavorable reflection on his credibility as a whole where his
testimony clashes with that of other witnesses His insistence on the stand
that he did not care to learn the identity of Lasky and Hustick when they
appeared in the , showroom (in support of his testimony that they did not
identify themselves ) and his assertions that he later told them or stated in
their presence that he did not know who they were are effectively counter-
poised by his testimony that he went back into his place of business and
proceeded to speak to Yaskulski and Battaglia about joining the Union His
explanation on cross-examination that he took the latter action because he
had heard Lasky tell Yaskulski and later him , Schafer , out on the sidewalk
that he, Lasky , was a union representative is not consistent with his,
Schafer's , testimony on direct that he told Boyer, after he, Schafer, had
turned away from Lasky and from Hustick and started walking into the shop
that be, Schafer, did not know who Lasky and Husttck were
The importance of this matter is that if, in fact , the union representatives
had not identified themselves as union representatives in the showroom a
question would arise as to whether any labor organization had communicat-
ed to the Employer a demand for recognition As to Lasky 's threat that he
would squash Schafer like a bug I do not believe that Schafer would have
taken the remark seriously in the circumstances . The remark was made by
Lasky in the heat of the dispute , in which Schafer had taken the initiative,
over Lasky's presence on the sidewalk . Lasky testified that he is 5 feet 3-1/2
inches tall-he certainly appeared no taller Schafer admitted that he is 6 feet
1-1/2 inches in height and, from his appearance , his build is robust
8 I so find based on the credible testimony of Hustick in this regard and
the further testimony of Lasky and Hustick that they overheard some of the
to be recounted remarks directed by Schafer and Boyer to Yaskulski and
Battaglia inside of Respondent's premises
Boyer then asked Yaskulski what employees had joined
the ' Union. Yaskulski responded that, as far as he knew,
everybody had joined.9
A few minutes later, Schafer, admittedly, spoke to Yas-
kulski and asked him if he had signed a union card. When
Yaskulski replied in the affirmative, Schafer told him that
he thought Yaskulski "did it" behind Schafer's back. Yas-
kulski then told Schafer that he, Yaskulski, had discussed
the matter with Boyer before the card was signed. This
ended the conversation.io
At about the same time Schafer also admittedly asked
Battaglia if he had joined the Union and Battaglia stated
that`he had. Schafer then stated he did not know how Bat-
taglia could join the Union because he , Battaglia , according
to Schafer, was part of management.
All of the foregoing incidents on September 10, 1973,
occurred during the approximate period 8:30 a.m. to 9 a.m.
in the morning.
During this same period, or at about 8:50 a.m., Clark, the
alleged discnminatee, called in to Boyer to say that he,
Clark, would be late for work. In this call there is no indica-
tion that Boyer mentioned discharge to Clark, and indeed
Clark came on in to work late, as will appear. Clark's late-
ness was due to the need to take a child to school that
morning.l i
At about 9:30 a.m., Schafer and Boyer spoke to Yaskulski
and told him that from then on he would have to find
another way to get home. Yaskulski, who had been using a
company car for 17 years to get to and from work, then
asked what they meant. They told Yaskulski that if they
gave him a car they would have to give the other employees
cars if the Union came in.12 At the same time they also told
Yaskulski they would take away his hospitalization benefits.
Boyer went on to explain that otherwise he would have to
provide hospitalization for everyone,else in the shop.13
At about 9:30 a.m. Clark came to work. Boyer told Clark
in the presence of Yaskulski that Clark was discharged for
being late and "his previous lateness." 14 Clark then left.
9 Boyer admitted that he asked Yaskulski if he had joined the Union. My
findings here are based, however, on the credible testimony of Yaskulski in
this regard
10 Yaskulski said this remark ended the conversation . Yaskulski , who was
called to testify for both sides , I found to be a sincere witness who testified
in a straightforward and convincing manner I discredit Schafer's remarks
that Schafer concluded the conversation by saying "fine" and walking away
11 Clark credibly so testified. I discredit Boyer's testimony to the contrary
Boyer admitted that on some previous occasions when Clark was late for
work, Clark's son had called Boyer to let Boyer know that Clark would be
late
12 Yaskulski credibly so testified Boyer's admissions to the conversation
are consistent with the testimony of Yaskulski . In telling Yaskulski that if
Yaskulski kept his car Respondent would have to give other employees cars,
Boyer named the additional employees who would thus also get them One
employee so named was Clark , according to the testimony of both Yaskulski
and Boyer. By naming Clark-who was already late at this time-I conclude
that Boyer had not yet determined to fire Clark , at least not for tardiness,
as will be discussed infra
13 Yaskulski credibly so testified as to this incident I discredit Schafer's
denial which , in any event, is not specific.
14 Yaskulski credibly so testified I do not credit Clark's testimony that he
was discharged after Boyer first asked Clark if Clark had joined the Union.
Yaskulski and Boyer both denied there was any mention of the Union
between Clark and Boyer There is also a discrepancy on this point between
Clark's testimony and his affidavit . Moreover, Boyer had already been told
Continued
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clark has not been rehired.
Also on the morning of September 10, 1973, Schafer told
Battaglia that he, Schafer, would close or sell his business
rather than deal with the Union."
Boyer also spoke to Battaglia that morning further about
the Union. Boyer asked Battaglia whether he, Battaglia,
realized what he had done to Boyer. Boyer stated that "these
people" will ruin me. Battaglia expressed surprise in light of
Boyer's prior statement to Yaskulski (on September 4) to do
what Yaskulski thought best in respect to joining the Union.
Boyer then advised Battaglia that if the latter could get more
money to go someplace else because Battaglia's job was not
that important. Boyer said he, Boyer, could do Battaglia's
job and Yaskulski knew where the parts were anyway."
Boyer also told Battaglia that, if Battagliajoined the Union,
Battaglia no longer could write warranty claims (for which
Battaglia received a commission) because , said Boyer, Bat-
taglia was part of management.]'
Following these remarks by Boyer and Schafer to Yaskul-
ski and Battaglia, Yaskulski told Boyer and Schafer that he
and Battaglia would seek to get out of the Union.18
At about lunch time on September 10, 1973, Yaskulski
and Battaglia went to the Union's headquarters where they
spoke to Lasky. They told Lasky they were frightened and
did not want the Union to pursue the matter of their repre-
sentation. Yaskulski told Lasky that Respondent had
threatened to take his car and his hospitalization away.
Battaglia said that Respondent told him they did not need
him and that Yaskulski could do Battaglia's job.
In response to these requests by Battaglia and Yaskulski,
Lasky told them, among other things, that they were pro-
tected by the National Labor Relations Board. Battaglia
and Yaskulski agreed to think the matter over and let the
union representatives know. Yaskulski said specifically that
he and Battaglia would know better after they got back to
the shop.
Following lunchtime, Yaskulski and Battaglia returned to
Respondent's place of business and told Schafer and Boyer
that they were out of the Union, that there was nothing to
worry about and that the matter was all straightened out. To
this Boyer responded "good" and proceeded to apologize to
Yaskulski and Battaglia not for what he, Boyer, had said to
by Yaskulski that the latter thought all of the shop employees had joined the
Union.
15 Battaglia credibly so testified and I detect no real discrepancy between
his testimony and his preheanng affidavit on this point . I do not credit
Schafer's somewhat contrary testimony that he told Battaglia he would rather
close than deal with people like Lasky and Hustick.
16 Battaglia thought a conversation on this subject occurred on September
10, although his affidavit reflects a similar conversation occurred on Septem-
ber 12. I conclude that the conversation occurred on September 10, as de-
scribed supra, not only based on Battaglia's ultimate recollection at the
hearing that two conversations involving this subject occurred , but also his
later comments at lunchtime and on the evening of September 10, 1973, to
union officials that this threat to his job had already been made by Respon-
dent . Boyer recalled a similar conversation occurring a day or so later. I will
take this up subsequently I find nothing in the testimony of Boyer indicating
a precise denial of the testimony of Battaglia as to what occurred in this
incident.
17 Boyer admitted having a conversation with Battaglia about commissions
in which Boyer so stated . Battaglia confirmed this
18 This fourth member of the potential bargaining unit, Kearns, was not
present on September 10, being on vacation at the time
them that morning but rather the emotional way in which
he said it, as Boyer described in his testimony.
During the afternoon of September 10, 1973, after Battag-
lia and Yaskulski had reported on their visit to the union
headquarters at lunchtime, Boyer or Schafer told Battaglia
and Yaskulski they would get $10 raises at the end' of the
year.19 To this Yaskulski responded that if he had known
that he would have joined the Union.
That same afternoon Schafer and Battaglia were discuss-
ing Battaglia's reasons for joining the Union and Battaglia
explained that he had joined because of certain benefits. To
this Schafer responded that he could obtain an insurance
plan for Battaglia which would give Battaglia a lot better
coverage for a lot less money than it would cost through the
Union. ° Schafer went on to say that there "would be no
commissions made by the insurance broker" but that Bat-
taglia would pay the insurance premiums after Boyer
worked something out through Battaglia's salary 21
Late in the afternoon of September 10, union representa-
tives Kerr and Cohen spoke to Battaglia and Yaskulski
outside of Respondent's showroom. The employees told
these union agents that Clark had been fired and that they
wanted their union cards back. Kerr told them to come to
the union office that evening.22
On the evening of September 10, 1973, Battaglia and
Yaskulski went to the Union's office and met with Lasky,
Kerr, and Cohen. Battaglia and Yaskulski repeated to the
union officials that Respondent had threatened to take
away Yaskulski's car and hospitalization, to do away with
Battaglia's job, and that Clark had been discharged. They
then again asked the union representatives to withdraw
their cards and not to pursue the matter of their representa-
tion. The union representatives, however, told them the
cards had already gone to the Labor Board. Nothing more
apparently came of this conversation and Yaskulski and
Battaglia left.
On September 11 or 12, Boyer again spoke to Battaglia
about the Union, inquiring ` what salary the Union had
promised Battaglia.,When Battaglia responded $210 per
week, Boyer said Respondent could not afford it and that
Battaglia should quit and find another job23
Shortly before Christmas 1973, Boyer, in the presence of
Schafer, told the employees that he would not give them a
raise of $10. This raise had been given by Respondent each
Christmas for the previous 5 years.
Boyer testified that he had first discussed this matter with
the other Respondent officials, Schafer, and Mrs. Diamond,
and had told them that in the investigation of the charges
19 Yaskulski and Battaglia credibly so testified I do not credit Boyer's and
Schafer's general denial here , which do not precisely conflict with the cred-
ited testimony, in any event.
20 Schafer so admitted His admission is consistent with the testimony of
Battaglia.
21 Schafer so admitted.
22 Kerr credibly so testified. Boyer also recalled Battaglia speaking to
people who , Battaglia said , were union representatives on the sidewalk in
front of Respondent's business that afternoon Battaglia also recalled a con-
versation in which he , Battagha , and Yaskulski spoke to Kerr that afternoon
or the next in which Battaglia told Kerr what had happened on the morning
of September 10. Kerr had not apparently been present at the Union 's office
when Battaglia and Yaskulski had been there at lunchtime.
23 Battaglia credibly so testified . Boyer admitted his participation in this
conversation . He did not deny saying that Battaglia should quit.
DIAMOND MOTORS, INC. 827
in this case, a Mr. Katz, from the Board office, had told
Boyer of an unfair labor practice allegation against Respon-
dent that it had promised all the employees a raise if they
withdrew from the Union. Boyer stated that he told Schafer
and Mrs. Diamond that if he proceeded with the raises in
these circumstances he could fall into the trap of appearing
to give the'employees a wage increase to stop them from
joming,a union.
When he later told the employees he was denying their
raise he explained to them the reasons for his action, that
is, to avoid the trap he had previously foreseen in his discus-
sion with Schafer and Mrs. Diamond.
Respondent had also given shop employees a bonus each
year at the same time. The bonus, unlike the $10 raise, was
again granted at Christmas 1973.
IV. CONCLUDING FINDINGS
A. The Alleged Interference, Restraint, and Coercion in Vi-
olation of Section 8(a)(1)
In addition to its assertions as to the facts of the foregoing
incidents-which have been disposed of in part on the basis
of my credibility findings-, Respondent, in its brief, pre-
sents essentially seven arguments why the conduct of Schaf-
er and Boyer toward Yaskulski and Battaglia does not
constitute unlawful interference, restraint, and coercion of
Battaglia and Yaskulski in violation of the Section 7 rights
of these employees. I will treat with each of the contentions
seriatim.
Initially, Respondent contends that Battaglia is a mana-
gerial employee and is not therefore entitled to the protec-
tion afforded by Section 8(a)(1) of the Act. I disagree. As
will appear, I find that Battaglia is not a managerial employ-
ee and that he is included in the collective-bargaining unit.
But even if I were to find that Battaglia was a managerial
employee and excluded from the bargaining unit I would
nonetheless conclude that he is entitled to the protection of
Section 7 of the Act, hence perforce of Section 8(a)(1). For
the Board has held that a managerial employee is an em-
ployee within the meaning of the Act 24 The mere fact that
such an individual may not properly be included in a bar-
gaining unit with certain other employees is not sufficient
to negate his status as an employee 25
Respondent also contends that the absence of any preex-
isting union animus on the part of Respondent should be
taken into account in respect to Schafer's and Boyer's ques-
tioning of Yaskulski and Battaglia on September 10 in re-
gard to their union membership. Here Respondent relies on
Doyer's advice to Yaskulski on September 4, 1974, to do
what Yaskulski thought best in regard to joining the Union,
a matter of which Battaglia also later became aware. I reject
this contention because what is of concern to us here is
Respondent's animus against the Union on September 10.
That animus was displayed to Battaglia in Schafer's summa-
ry ejection of Lasky and Hustick from the showroom and
24 North Arkansas Electric Cooperative, Inc, 185 NLRB 500, enforcement
denied 446 F.2d 601 (C A. 8, 1971) The Board's decision, however, is binding
upon me Prudential Insurance Company of America, 119 NLRB 768, 773
25 Id
it was also shown to Yaskulski who heard the noise created
in the confrontation on the sidewalk and who hardly could
have missed the implications of Schafer's challenge that
Yaskulski had "done it" behind Schafer's back.
Respondent also contends that some of what occurred on
September 10 proceeded from the claimed emotional upset
of Schafer and Boyer based on Lasky's alleged threats; I
have already found no foundation in this claim. The emo-
tional upset, if any, judging from the sequence of events,
derived rather from the Union' s organization of
Respondent's shop employees and its request for recogni-
tion.
Nor can Respondent find any comfort in its contention
that Schafer and Boyer were merely predicting what the
Union's bargaining demands would be when they told Yas-
kulski he could no longer have his car or hospitalization if
the Union came in because Respondent would be required
to provide these benefits to all employees. Respondent had
no way knowing what employee benefits Lasky and Hus-
tick would seek to obtain for the shop employees, because
Schafer never gave Lasky and Hustick the chance to ask. I
thus see no basis to permit Respondent to make the Union
the unwitting scapegoat for this conduct 26
Respondent further contends that any announcement of
a pay raise to employees at this time was merely consistent
with Respondent's policy of granting a $10 wage increase at
Christmas over the previous 5 years. This policy of granting
a raise at Christmas does not, however, exculpate
Respondent' s announcement of it 3-1/2 months before
Christmas in the throes of Respondent's reaction to the
Union's demand for recognition. And there is no evidence
that the announcements of the previous Christmas raises
customarily occurred in September.
Respondent also argues, in essence, that whatever re-
marks Schafer and Boyer made to Battaglia and Yaskulski
on September 10 could not have exceeded the protective
bounds of Section 8(c) of the Act because they were unac-
companied by any explicit threat or promise of benefit. I
likewise reject this contention. For it is hornbook law that,
in evaluating such remarks by employers to their employees,
the Board considers the inherent and implicit tendency of
such remarks reasonably to create fear and apprehension
among employees if they support a Union. I conclude that
the various statements by Schafer and Boyer to Yaskulski
and Battaglia about Yaskulski's car and insurance,
Battaglia's commissions, etc., contained the proscribed ten-
dency. But there is much more in the present case-with
which to evaluate the import of these remarks-than their
obvious tendency to coerce. There is, unusually, also empir-
ical proof that the remarks actually impelled Yaskulski and
Battaglia to withdraw their support from the Union-a fact
graphically demonstrated by their two trips to the union
office, on the fateful day, in an effort to have the Union
abandon its effort to represent them.
Finally, Respondent relies on Boyer's apology to Yaskul-
ski and Battaglia. But Boyer's own testimony was that he
did not apologize for what he said but rather the manner in
which he said it. In any event his apology came-much
belatedly-on the heels of the representation by Yaskulski
21 Cf American Paper and Supply Co, 159 NLRB 1243.
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Battaglia that they had withdrawn from the Union.
Further, Respondent(continued its efforts to undermine the
Union even after the instant apology.
In view of the foregoing, my factual findings, supra, and
the record as a whole, I conclude that Respondent has
violated Section 8(a)(1) of the Act by its conduct-all of
which occurred shortly after the Union demanded recogni-
tion on September 10, 1973-in the following particulars:
1. The coercive interrogations by Schafer and Boyer in
which the latter asked Yaskulski and Battaglia about -their
union membership and Boyer asked Yaskulski about the
union membership of other employees. No valid purpose
for these interrogations was provided the employees nor
were they given any assurance there would be no repnsal27
2. The threats of Schafer and Boyer to Yaskulski to take
away Yaskulski's car and hospitalization insurance because
of the Union.28
3. Schafer's threat to Battaglia to sell or close the busi-
ness rather than deal with the Union.29
4. Boyer's implied threat to Battaglia, in their discussion
about the Union, to do away with Battaglia's job.30
5. Boyer's threat to Battaglia that Battaglia could no lon-
ger do warranty claims-which Battaglia handled during
additional hours on two evenings per week and for which
Battaglia received commissions-if Battaglia joined the
Union 31
6. Boyer's and Schafer's promises to Battaglia and Yas-
kulski of a $10 wage increase in the context of Respondent's
foregoing coercive conduct and after Battaglia and Yaskul-
ski stated they had withdrawn from the Union, which had
to have impressed on the minds of Battaglia and Yaskulski
that it was not necessary to be represented by the Union to
obtain a raise.32
7. Schafer's offer-after Dattaglia stated he had with-
drawn from the Union-to obtain a better insurance policy
for Battaglia than the Union could get for him without any
commission being charged thereon. The saving of the com-
mission would be an obvious economic advantage to Bat-
taglia and, in context, was an implicit promise of reward or
benefit to deflect Battaglia's interest in obtaining represen-
tation by the Union.33
The remaining allegation, that Respondent violated Sec-
tion 8(a)(1) by refusing to grant its Christmas wage increase,
is a bit more complex-to evaluate in all the circumstances.
For it is well settled that where an employer with a tradition
of periodic wage increases finds himself in the analagous
situation of a pending Board election, he has the legal obli-
gation to proceed as he would have done if the Union were
27 E.g., Charlotte Union Bus Station, Inc., 135 NLRB 228; Swanson-Nunn
Electric Company, Inc., 203 NLRB 213. Also see Abex Corp , 162 NLRB 328,
in which the Board held that, where an employer , even in a friendly or casual
conversation , seeks to have an employee inform on his fellow employees
regarding a union , such conduct is violative of Sec 8(a)(1)
See Rust Sales Co., 157 NLRB 1681; Yankee Distributors, 152 NLRB
1018, 1024.
29 E.g Enterprise Products Co., 196 NLRB 549, 563 , enfd 471 F.2d 651
(C.A. 5, 1973).
30Id at 563.
3i Cf. John F Cuneo Co , 152 NLRB 929, 931 (threat to withdraw overtime
if the Union came in).
32 Cf Fox Valley Truck Drivers, 153 NLRB 727, 737
33 Id
not on the scene. An employer in such a situation violates
Section 8(a)(1) of the Act if he advised his employees that
he is withholding the regular increases because of the pres-
ence of the Union.34
But this was not the case herein. Thus, Boyer's explana-
tion to employees, which is in no way placed in question by
the record, was that the increase was being withheld to
avoid the charge of an unfair labor practice. That is, as
Boyer explained, Respondent did not wish to be accused of
granting such an increase (pursuant to an unlawful promise
of such an increase with which it had been charged) for the
purpose of dissuading employees from supporting the
Union.
In these circumstances, I am satisfied that the withhold-
ing of this increase just before Christmas was not unlawful.
While under the law such action might well have created the
presumption that the increase was withheld in order to
coerce or restrain employees in their support for the Union
where such an increase had previously been traditional, I
conclude that any such presumption was overcome by
Boyer's foregoing explanation to the employees. And the
credibility of that explanation would reasonably be rein-
forced in the minds of the employees by the fact that Re-
spondent, contemporaneously, granted its regular
Christmas bonuses which were not involved in the unfair
labor practice allegations against it35
I shall accordingly recommend dismissal of this allega-
tion of the complaint.
B. The Discharge of Clark, Allegedly in Violation
of Section 8(a)(3)
Clark, a porter with other duties to be described, was
admittedly discharged by Boyer when Clark arrived for
work at 9:30 a.m. on the morning of September 10, 1973.
The reasons expressed by Boyer to Clark, as credibly de-
scribed by Yaskulski, were the fact that Clark was an hour
late and Clark's previous record of tardiness. Schafer, who
admitted that he was not present when Clark was dis-
charged, testified that Clark was discharged for a combina-
tion of reasons-tardiness and absenteeism.
The question to be decided is whether Respondent dis-
charged Clark for tardiness as Boyer stated to Clark, and
absenteeism, as added by Schafer at the hearing, or whether
Clark was discharged because Clark was a member of the
Union, as urged by the General Counsel.
There is no question that Clark had joined the Union, as
previously recounted. And there is no issue that Respondent
knew of it, since Yaskulski had told Boyer, prior to Clark's
34 The Gates Rubber Company, 182 NLRB 95
3s These circumstances distinguish Ring Metals Company, 198 NLRB No
143, relied on by the General Counsel, where the 8(a)(1) violation found by
the Board rested upon a company official' s statement that the filing of a
petition and charges by the union "tied the empployer's hands," in respect to
a promised wage increase and that no such mc^ease would be forthcoming
until these matters were settled. The obvious implication of this remark was
to make the union the scapegoat for the employees' misfortune in not receiv-
ing the hoped for increase Here the Respondent clearly stated that, in
foreclosing this raise, it sought only to avoid the charge of wrongdoing It
made no effort to lay the blame for this matter on the union's doorstep. See
Uarco Incorporate4 169 NLRB 1153, 1154, compare American Paper and
Supply Co, 159 NLRB 1243
DIAMOND MOTORS, INC. 829
arrival on September 10, 1973, that he, Yaskulski, believed
all the shop employees had joined the Union. Respondent's
animus toward the Union is amply demonstrated by its
interrogations of, and threats to, Dattaglia and Yaskulski on
the same morning as it discharged Clark.
There is some confusion in the record as to the precise
extent of Clark's lateness and absenteeism record since he
began his employment on some date no later than May 28,
1973. Thus, in Boyer's second pretrial affidavit, Boyer as-
serted that Clark was absent on June 12 and August 11 and
13, 1973. Respondent's "sign in" book and its payroll re-
cords indicate rather that Clark came to work and was paid
for those days. In Boyer's first pretrial affidavit Boyer as-
serted that Clark was absent August 3, 16, 19, 29, 30, and
31. Respondent stipulated-as its payroll records indi-
cate-that Clark was paid for 8 hours on August 3 and 5
hours each (as were other employees) on August 16 and 17.
The payroll records indicate that Clark was paid for 8 hours
on every day of the period August 29-31. Clark denied
being absent on August 3, 16, 17 or 29-31.
Clark admitted, however, that he was absent at least 3
days and he signed in late on 5 days. Consequently the
record supports the conclusion that Clark was absent and
late on a number of occasions during his employment over
the summer of 1973. The record further indicates that Boyer
has discharged other porters in the past "mostly for being
late."
The question here, however, as stated earlier, is whether
Clark's prior absences, lateness, and his tardiness on Sep-
tember 10, 1973, were the motivating factors which caused
Respondent to discharge him. I conclude that they were not.
Taking first the matter of absenteeism, I reject it as a
reason because it was not mentioned to Clark by Boyer on
the day he was discharged. And Boyer, who discharged
Clark, admittedly did not first discuss the discharge with
Schafer who made the claim at the hearing that the dis-
charge was also caused by Clark's absenteeism.
As to lateness-while it is true that Clark was in fact late
for work the day he was discharged-Clark had been late
before. Indeed on the previous day that Clark was late
(about a week or so before his discharge) Schafer did not
warn Clark that any repetition would be cause for dis-
charge. Schafer rather said to Clark, who was about an hour
or so late on that occasion, "Good afternoon, I am glad you
came to work," Schafer also asked Clark why he was late,
got no reply,, and sent Clark about his duties. Boyer, who
was likewise aware that Clark was late on this previous
occasion, also spoke to Clark at that time but did not warn
him that discharge would result the next time Clark was late.
On some, apparently 6 other occasions, Schafer testified, he
had "warned" Clark about tardiness.
What then was it that made Clark's tardiness on Septem-
ber 10 different from those prior occasions when it had been
tolerated? I conclude that it was the additional fact that he
had joined the Union.
In reaching this conclusion, I rely on Clark's union mem-
bership, Boyer's knowledge of it and Respondent's obvious
animus toward the Union. I further rely on the timing of the
discharge just after the Union's demand for recognition
while the campaign of Boyer and Schafer to undermine
employee support of the Union-by the aforementioned
threats to Yaskulski and Battaglia-was in full flight 36
I accordingly conclude that Respondent discharged
Clark because the latter was a union member and that by
discharging Clark for this reason and in refusing to reinstate
him, Respondent violated, and continues to violate, Section
8(a)(3) and (1) of the Act.
C. The Refusal to Bargain
I have already found that the Union, through Lasky,
demanded recognition of Respondent in the showroom on
September 10, 1973. Respondent refused the Union's de-
mand by inviting Lasky and Hustick to leave Respondent's
showroom. This refusal was compounded by Respondent's
subsequent activities, already found to be in violation of
Section 8(a)(1) and (3) of the Act.
In defending against the refusal-to-bargain allegation of
the complaint, Respondent advances a number of argu-
ments in connection with other aspects of these charges.
Thus, Respondent contends (1) that no unit should include
Battaglia because, says Respondent, the latter is a manage-
rial employee; (2) that the Union never represented a major-
ity of the employees in the bargaining unit, viz, did not
have valid authorization cards from such a majority, and
(3) in any event, no bargaining order should issue because
Respondent's misconduct, if any, was not such as to pre-
clude the holding of a free and fair election.
The collective-bargaining unit
The General Counsel contends that the appropriate bar-
gaining unit should include not only the mechanics (Yaskul-
ski and Kearns) and the porter (Clark) but also the parts
department employee (Battaglia). And the General Counsel
would include in such a unit the classification "polisher."
The Board has held that a unit consisting, inter alia, of
mechanics, porters, and parts department employees is an
appropriate unit for collective bargaining of employees of
an employer, like Respondent, which is an agency for the
sales and service of automobiles.37 As will appear, I find
36 See, e.g., Uniroyal, Inc, 197 NLRB 1034.
The advancement by Schafer at the hearing of a new and different rea-
son-absenteeism-not 'mentioned to Clark on September 10, 1973, also
suggests that Respondent was seeking further pretext to rationalize its dis-
charge of Clark Cf Ideal Donut Shop, 148 NLRB 236, 246, enfd. 347 F.2d
498 (C A.7, 1965)
In rejecting the other defense that Clark was fired for being late on Septem-
ber 10, 1 further rely on Clark's prior telephone call to Boyer in which no
mention of discharge for lateness was made and on another incident which
took place that morning As previously mentioned, after Clark was already
late and when Boyer and Schafer were telling Yaskulski they would have to
take the latter's car away or give cars to all the shop employees if the Union
came in, one of the shop employees named by Boyer and Schafer as being
a necessary car recipient under such an arrangement was Clark. The inesca-
pable inference of this remark-since Clark was already late when it was
made-is that Respondent still considered Clark like any other employee,
that is, had chosen to ignore the fact of his lateness And there can be no
question that Boyer knew before that time that Clark was late, not only based
on Clark's telephone call but also due to the fact, as Boyer noted at the
hearing, that Clark had been needed that morning to do cleaning and other
work before 9 30 a.m
I thus conclude that when Clark did arrive at work, Boyer, in pique over
the unionization of his employees, discharged Clark because Clark was also
a union supporter and in so doing seized upon Clark's lateness as a conven-
ient pretext to cloak the real motive for his action.
37 E.g., W R Shadoff 154 NLRB 992, 994
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such a unit to be appropriate here. Since Clark credibly
testified that his duties include washing, cleaning, and shin-
ing cars, I will also include in this unit the classification
"polisher" as so described.
The Respondent, however, would exclude Battaglia as a
managerial employee. I reject this contention.
Battaglia is the parts counterman, wears a uniform like
the mechanics, and is paid on a hourly basis at the rate of
$2.93. He orders parts, puts them away, provides them to
customers and to the mechanics, takes cars to the car wash,
and writes warranty claims made by Respondent upon the
car manufacturer to obtain reimbursement for defective
parts which Respondent has replaced. Battaglia's duties re-
quire him to make many visits to the shop each day. Me-
chanics also come to the parts department seven or eight
times a day.
Battaglia does not have to sign in, as do the mechanics
and porter, but Battaglia has stated hours of work which are
the same as the mechanics and porter except for the two
evenings per week when he writes the warranty claims. Bat-
taglia receives a 10-percent commission on the amount of
such claims. If Schafer and Boyer both leave, Battaglia is
given their instructions' to relay to the mechanics.
In ordering parts Battaglia has the authority to pledge
Respondent's credit. It is this authority on which Respon-
dent primarily bases its contention that he is a managerial
employee 38
In ordering parts, however, his duties are routine and the
parts are ordered in accordance with specifications in parts
books or bulletins retained in the parts department.39 The
value of the parts he orders is in the vicinity of $3,000 per
month. Parts range in price from several for a penny to a
single part for $700, although the need to purchase items of
the latter variety is infrequent.
Since the authority of Battaglia to purchase parts is a
routine function circumscribed by company books or bulle-
tins and need, I conclude that his discretion, if any, in
performing this work is too limited to support a conclusion
that he is managerial employee 40 I find rather that he is
not4'
I accordingly conclude that the following is an appropn-
ate unit for the purposes of collective bargaining within the
meaning of Section 8(b) of the Act.
All maintenance mechanics, porters, polishers and
parts department employees excluding guards and su-
pervisors as defined in the Act:
2. The authorization cards
The legend on the authorization cards signed by Battag-
ha, Clark, Yaskulski, and Kearns is the same in each in-
38 I find no probative evidence that he formulates, determines, and effectu-
ates Respondent's labor relations policy. And his responsibility as a conduit
to relay Boyer's and Schafer's instructions to the mechanics does not make
him a supervisor
39 Battaglia has received two half days of training , at Respondent's ex-
pense , for this work.
40 His work of filling out claim forms is also a routine procedure.
41 Kitsap County Automobile Dealers Association, 124 NLRB 933
stance and has been previously set forth in this Decision.
Each such card clearly states, in haec verba, that the signer
authorizes the Union to represent him, and, in his behalf, to
negotiate and conclude all agreements as to hours of labor,
wages, and other employment conditions.
Nonetheless, Respondent argues that since Clark did not
read his card and since Kearns read only the words "appli-
cation for membership," these cards should be rejected be-
cause the union representative who solicited
them-Kerr-told Kearns and Clark that these cards might
be used to obtain a Board election. Respondent also notes
that a similar statement was made by Lasky to Battaglia
after Battaglia gave Lasky Battaglia's signed card.
I find all four cards to be valid.
While it is true that Kearns and Clark were told that the
cards might be used to obtain a Board election, Kerr also
told them, as I have found, that their signatures on the cards
gave the Union the right to represent them and that it would
obtain better benefits for them.
Since they were not therefore told that the cards would
be used only to obtain a Board election and were specifically
told that the cards gave the Union the right to represent
them and that the Union would obtain them better benefits,
their cards properly form a part of the Union's majority
showing.42 For their part, Battaglia and Yaskulski clearly
understood when they executed their cards that one purpose
of the card was to give the Union the right to represent
them, as I have already found.
3. Whether a bargaining order is appropriate
There can be little question in the present case whether
a bargaining order is appropriate to remedy the
Respondent's refusal to bargain with the Union. For it is
manifest that Respondent has engaged in conduct which is
"disruptive of the election process" within the meaning of
N.L R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969).
More particularly, one union supporter, Clark, was dis-
charged because he was a union member. And two others,
Battaglia and Yaskulski, twice went to the Union's head-
quarters in an attempt to withdraw from the Umon because
of the Respondent's threats to job retention and conditions
of employment and its later promises of benefit to them.
Thus, Respondent's unfair labor practices have had a signif-
icant impact on the employment or benefits of three out of
the four employees in the unit in a way that would render
the results of any Board election unreliable.
I therefore find that by refusing to bargain with the Umon
and engaging in the unfair labor practices described above,
Respondent has violated Section 8(a)(5) and (1) of the Act
and that in order to effectuate the policies of the Act, a
bargaining order is required to remedy Respondent's refusal
to bargain as well as its other unfair labor practices.
42 Cumberland Shoe Corporation, 144 NLRB 1268, enfd. 351 F.2d 917 (C A
6, 1965); Essex Wire Corp., 188 NLRB 397, 416-417, enfd as modified 496
F.2d 862 (C.A 6, 1972) (card of Wisniewski).
While Clark's and Kearn's cards were undated they were, based on the
undisputed testimony, executed somewhere between the end of August and
September 10, 1973, the latter date being when they were received by the
Board See Essex Wire Corp, supra at 412, where the Board, in similar
circumstances, found an undated card to be valid (card of Griffith).
DIAMOND MOTORS, INC. 831
V THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in Section I, above, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of the Act.
3. The following employees constitute a unit appropriate
for the purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All maintenance mechanics , porters, polishers and
parts department employees employed at
Respondent's place of business , 130-07 Merrick Boule-
vard, Queens, New York City, New York, excluding
guards and supervisors as defined in the Act.
4. At all times since September 10, 1973, the Union has
been the duly designated representative of the employees in
the aforesaid collective-bargaining unit.
5. By refusing on September 10, 1973, and thereafter, to
bargain with the Union as the exclusive bargaining repre-
sentative of the employees in the above-described unit Re-
spondent has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(5) of the Act.
6. By discriminatorily discharging Curtis Clark because
he was a member of the Union, Respondent has engaged in,
and is engaging in, unfair labor practices within the mean-
ing of Section 8(a)(3) of the Act.
7. By the foregoing conduct and by interfering with, re-
straining, and coercing its employees in the exercise of rights
guaranteed by Section 7 of the Act in other respects set forth
in the body of this Decision, Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
9. Respondent did not engage in unfair labor practices
other than as found herein.
THE REMEDY
The recommended Order will contain the conventional
provisions for cases involving findings of interference, re-
straint, coercion, unlawful discharge, and unlawful refusal
to bargain in violation of Section 8(a)(1), (3), and (5) of the
Act. This will require Respondent to cease and desist from
the unfair labor practices found and to post a notice to that
effect which will also state the affirmative action Respon-
dent will be required to take to remedy its discharge of Clark
and its refusal to bargain with the Union.
Thus, Respondent will be required to offer Clark rein-
statement to his former or substantially equivalent position
without prejudice to his seniority or other rights or privi-
leges. He will be made whole for any loss of earnings he may
have suffered by reason of the discrimination against him
by payment to him of a sum of money equal to that which
he would have earned from the date of the offer of reinstate-
ment, less his net earnings , if any, during such period to be
computed in the manner prescribed in F. W. Woolworth
Company, 90 NLRB 289 , with 6-percent interest thereon as
prescribed by Isis Plumbing & Heating Co., 138 NLRB 716.
With regard to Respondent's unlawful refusal to bargain,
an order to bargain collectively with the Union is appropri-
ate to remedy the Respondent's violations of the Act. Even
in the absence of this refusal to bargain , I would find this
remedy appropriate herein in view of the Respondent's ex-
tensive violations of Section 8(a)(1) of the Act and its viola-
tion of Section 8(a)(3) of the Act, which in my judgment are
of such a nature that a free and reliable election cannot be
had.43
Finally, it will be recommended because of the nature of
the unfair labor practices in which Respondent has engaged
(see N.L. R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536) that
Respondent be ordered to cease and desist from infringing
in any manner upon the rights guaranteed employees by
Section 7 of the Act.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in this case and pursuant
to Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER44
Respondent, Diamond Motors, Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in, or activities on behalf
of, Local IA, United Automotive Sales and Service Em-
ployees Union, NOITU, or any other labor organization by
discriminating in regard to the hire or tenure of employment
or in any other manner in regard to any term or condition
of employment of any of Respondent's employees in order
to discourage union membership or union or other concert-
ed activities.
(b) Coercively interrogating its employees concerning
their own or their fellow employees' union membership or
activities; threatening to close or sell its business rather than
deal with a union; threatening to take away employees'
company provided transportation or insurance because of
a Union; threatening to take away employees' commissions
if they join a union; threatening to do away with employees'
jobs if they belong to a union; promising employees in-
43 See J C Penney Co., Inc., 160 NLRB 279, enfd 384 F.2d 479 (C.A. 10,
1967), cited with approval by the Supreme Court in N L R B v. Gissel Pack-
ing Co, supra.
44 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Section
102.48 of the Rules and Regulations; be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
creased wages or insurance benefits to discourage them
from joining or remaining in a union or in any other manner
interfering with , restraining , or coercing employees in the
exercise of their rights guaranteed in Section 7 of the Act.
(c) Refusing to bargain collectively with Local IA, Unit-
ed Automotive Sales and Service Employees Union,
NOITU, as the exclusive bargaining representative of the
following collective-bargaining unit , which is an appropri-
ate unit within the meaning of the Act:
All maintenance mechanics , porters, polishers and
parts department employees employed at
Respondent 's place of business at 130-07 Merrick Bou-
levard, Queens, New York City, New York, excluding
guards and supervisors as defined in the Act.
2. Take the following affirmative action which is deemed
necessary to effectuate the policies of the Act:
(a) Offer Curtis Clark immediate and full reinstatement
to his former or substantially equivalent position , without
prejudice to his seniority or other rights and privileges, and
make him whole for any loss of pay he may have suffered
as the result of his discriminatory discharge in the manner
set forth in "The Remedy" section of the Administrative
Law Judge 's Decision.
(b) Preserve and, upon request , make available to the
Board or its agents , for examination and copying , all payroll
records and reports and all other records necessary to ana-
lyze the amount of backpay due under the terms of this
Order.
(c) Upon request , bargain collectively with Local IA,
United Automotive Sales and Service Employees Union,
NOITU, as the exclusive collective -bargaining representa-
tive of all its employees in the appropriate unit set forth
above, with respect to rates of pay, wages , hours, or other
terms and conditions of employment , and, if an under-
standing is reached , embody such understanding in a signed
agreement.
(d) Post at its Queens, New York City, New York, place
of business copies of the attached notice marked "Appen-
dix."45 Copies of this notice , on forms provided by the Re-
gional Director for Region 29, after being duly signed by
Respondent 's representative , shall be posted by it immedi-
ately upon receipt thereof and be maintained by it for 60
consecutive days thereafter , in conspicuous places including
all places where notices to employees are customarily post-
ed. Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced or covered by any
other material.
(e) Notify the Regional Director for Region 29, in writ-
ing, within 20 days from the date of the receipt of this Order, i
what steps the Respondent has taken to comply herewith.
IT IS HEREBY FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges unfair labor prac-
tices not found herein.
45 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."